Exhibit 10.4


 


PURCHASE AND SALE AGREEMENT


 


Dated as of June 30, 2004


 


between


 


SIRVA RELOCATION LLC,

as Originator,


 


and


 


SIRVA RELOCATION CREDIT, LLC,

as Buyer


 

















 


TABLE OF CONENTS


 


	
  SECTION 1.

  	
  DEFINITIONS AND RELATED
  MATTERS

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Defined Terms

  	
   

  
	
  1.2

  	
  Other
  Interpretive Matters

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  AGREEMENT TO PURCHASE
  AND SELL

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Purchase and
  Sale

  	
   

  
	
  2.2

  	
  Timing of
  Purchases

  	
   

  
	
  2.3

  	
  Purchase Price

  	
   

  
	
  2.4

  	
  Specified
  Documents

  	
   

  
	
  2.5

  	
  No Recourse or
  Assumption of Obligations

  	
   

  
	
  2.6

  	
  Security
  Interest

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  ADMINISTRATION AND
  COLLECTION

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Originator to Act
  as Initial Servicer

  	
   

  
	
  3.2

  	
  Deemed
  Collections

  	
   

  
	
  3.3

  	
  Actions
  Evidencing Purchases

  	
   

  
	
  3.4

  	
  Application
  of Collections

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  REPRESENTATIONS AND
  WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Originator
  Representations and Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  GENERAL COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Covenants

  	
   

  
	
  5.2

  	
  Corporate
  Separateness

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  TERMINATION OF PURCHASES

  	
   

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Voluntary
  Termination

  	
   

  
	
  6.2

  	
  Automatic
  Termination

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  INDEMNIFICATION

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Originator’s
  Indemnity

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Amendments,
  Waivers, Etc

  	
   

  
	
  8.2

  	
  Assignment of
  Receivables Sale Agreement

  	
   

  
	
  8.3

  	
  Binding
  Effect; Assignment

  	
   

  
	
  8.4

  	
  Survival

  	
   

  
	
  8.5

  	
  Costs,
  Expenses and Taxes

  	
   

  
	
  8.6

  	
  Headings;
  Counterparts

  	
   

  
	
  8.7

  	
  Cumulative Rights
  and Severability

  	
   

  
	
  8.8

  	
  Governing
  Law; Submission to Jurisdiction

  	
   

  
	
  8.9

  	
  Waiver
  of Trial by Jury

  	
   

  
	
  8.10

  	
  Entire
  Agreement

  	
   

  
	
  8.11

  	
  No Proceedings

  	
   

  
	
  8.12

  	
  Confidentiality

  	
   

  



 


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  8.13

  	
  USA
  PATRIOT Act Notice

  	
   

  



 


ii

















 


THIS PURCHASE AND
SALE AGREEMENT dated as of June 30, 2004 (this “Agreement”) is between SIRVA RELOCATION LLC, a Delaware
limited liability company (“Originator”),
and SIRVA RELOCATION CREDIT, LLC, a Delaware limited liability company (“Buyer”). 
The parties agree as follows:


 


SECTION 1.                            DEFINITIONS
AND RELATED MATTERS


 


1.1                                 Defined
Terms.  In this Agreement,
unless otherwise specified: (a) capitalized terms are used as defined in
Schedule I to the Receivables Sale Agreement dated as of June 30,
2004 (as amended or modified from time to time, the “Second Tier Agreement”), among Buyer, Originator, as the
Initial Servicer, LaSalle Bank National Association, as agent for the
Purchasers (“Agent”) and the Purchasers from time to time party thereto (the
“Purchasers”),
as such agreement may be amended or modified from time to time; and (b) terms
defined in Article 9 of the UCC and not otherwise defined herein are used
as defined in such Article 9.


 


In addition, the
following terms will have the meanings specified below:


 


“Closing Date” means the date on which this
Agreement and the Second Tier Agreement become effective in accordance with
their terms.


 


“Excluded Losses” has the meaning assigned
thereto in Section 7.2.


 


“Indemnified Losses” has the meaning assigned
thereto in Section 7.1.


 


“Indemnified Party” has the meaning assigned
thereto in Section 7.1.


 


“Initial Funding Date” means the date of the
first purchase by Buyer from Originator under this agreement as approved by
Agent.


 


“Purchase Date”
means each day Receivables are sold, or are required to be sold, by Originator
to Buyer hereunder.


 


“Purchase Price”
means the purchase price to be paid by Buyer to Originator for Receivables,
calculated as provided in Section 2.3.


 


“Purchase Price
Percentage” has the meaning set forth in Section 2.3(c).


 


“Receivables” has
the meaning assigned thereto in the Second Tier Agreement, but only to the
extent such definition applies to payment obligations of all types described in
such definition that are owed to Originator, and related Records and proceeds
with respect thereto.


 


“Reset Date” means the last day of each
calendar quarter.


 


“Settlement Period” means a calendar month
(or, in the case of the first Settlement Period, the period from the Initial
Funding Date to the end of the calendar month in which the Initial Funding Date
Occurs).


 

















 


“Trigger Event” means that the outstanding
principal amount of the Subordinated Note exceeds 5% of the Receivables
Balance.


 


“Unpaid Balance” means, with respect to any
Receivable, the outstanding unpaid amount thereof.


 


1.2                                 Other
Interpretive Matters.  In
this Agreement, unless otherwise specified: (a) references to any
Section or Annex refer to such Section of, or Annex to, this
Agreement, and references in any Section or definition to any
subsection or clause refer to such subsection or clause of such
Section or definition; (b) “herein”, “hereof”, “hereto”, “hereunder”
and similar terms refer to this Agreement as a whole and not to any particular
provision of this Agreement; (c) “including” means including without limitation, and other forms of the
verb “to
include” have
correlative meanings; (d) the word “or” is not exclusive; and (e) captions are solely for convenience
of reference and shall not affect the meaning of this Agreement.


 


SECTION 2.                            AGREEMENT
TO PURCHASE AND SELL


 


2.1                                 Purchase and
Sale.  On the terms and
subject to the conditions set forth in this Agreement, Originator hereby sells
to Buyer, and Buyer hereby purchases from Originator, all of Originator’s
right, title and interest in, to and under the Receivables, the Collections and
all proceeds of the foregoing, in each case whether now existing or hereafter
arising or acquired.


 


2.2                                 Timing of
Purchases.  All of the
Receivables existing at the opening of Originator’s business on the Initial
Funding Date are hereby sold to Buyer as of the Initial Funding Date.  On and after the Initial Funding Date, each
Receivable shall be deemed to have been sold to Buyer immediately (and without
further action by any Person) upon the creation of such Receivable.  The proceeds with respect to each Receivable
(including all Collections with respect thereto) shall be sold at the same time
as such Receivable, whether such proceeds (or Collections) exist at such time
or arise or are acquired thereafter.


 


2.3                                 Purchase
Price.  (a) The aggregate
Purchase Price for the Receivables sold on the Initial Funding Date shall be
such amount as agreed upon on or prior to the Initial Funding Date, between
Originator and Buyer, as disclosed to the Agent.  The Purchase Price for the Receivables subsequently sold during
any Settlement Period shall equal (i) the aggregate unpaid principal balance of
the Receivables included therein, times (ii) the Purchase Price Percentage
then in effect.


 


(b)                                 On
the Initial Funding Date, Buyer shall pay Originator the Purchase Price for the
Receivables sold on that date.  On each
subsequent day, Buyer shall pay Originator the Purchase Price for Receivables
sold on such day, (i) in cash on such day, to the extent Buyer has received
funds that may be applied for such purpose under the Second Tier Agreement
(including as a result of an Incremental Purchase or as a distribution of
Collections on a Payment Date), or (ii) to the extent that such Purchase Price
is not paid in cash on such day, by increasing Buyer’s obligation to pay the
deferred Purchase Price for Receivables sold hereunder.  Buyer’s obligation to pay such deferred
Purchase Price shall be payable from time to time as funds are made available
to Buyer under the Second Tier Agreement and shall be evidenced by the
promissory note (as amended or modified from time to time, “Subordinated Note”) executed and delivered


 


2

















 


by Buyer to the
order of Originator as of the Closing Date. 
Originator may mark any increase in the deferred Purchase Price payable
hereunder on the grid attached to the Subordinated Note, provided that failure
to make any such recordation or any error in such grid shall not adversely
affect Originator’s rights to recover such deferred Purchase Price under the
Subordinated Note.  The Subordinated
Note shall not bear interest.


 


(c)                                  The
“Purchase
Price Percentage” shall mean a percentage figure that shall be
agreed upon from time to time (but no less frequently than once each calendar
quarter) by Buyer and Originator which reflects a fair market discounted net
present value of the unpaid principal balance of Receivables transferred to
Buyer by Originator, expressed as a percentage of such unpaid balance. Such
percentage may be greater or less than 100%. The calculation of such discounted
net present value shall take into account:


 


(i)                                     the expected yield
on the Receivables reduced by costs to Buyer of funding its acquisition and
maintenance of the Receivables and paying the Servicer Fee;


 


(ii)                                  the expected losses
on the Receivables (based upon historical losses on the Receivables and such
other factors as shall be agreed between Buyer and Originator), net of the
expected benefits to Buyer generated as a result of Originator’s obligation to
pay Deemed Collections to Buyer pursuant to Section 3.2; 


 


(iii)                               a reasonable expected
rate of return on capital of Buyer from its purchase of Receivables; and


 


(iv)                              such other factors as may
be mutually agreed between Buyer and Originator and as are customarily
reflected in an arm’s-length purchase and sale of comparable receivables.


 


The Purchase Price
Percentage shall be calculated prospectively with respect to Receivables
transferred on and after the date of such calculation. In no event shall the
Purchase Price Percentage (i) be adjusted retroactively to account for the
actual performance of previously purchased Receivables or for Buyer’s actual
rate of return on previously purchased Receivables or (ii) be increased from
and after the occurrence of, and during the continuation of, any Potential
Termination Event.


 


(d)                                 All
payments of the Purchase Price shall be in U.S. dollars.


 


2.4                                 Specified
Documents.  Prior to any sale
of a Receivable to Buyer hereunder, Originator or its designee shall deliver or
cause to be delivered to the Custodian the Specified Documents and the Document
Schedule with respect to each such Receivable.


 


2.5                                 No Recourse
or Assumption of Obligations. 
Except as specifically provided in this Agreement, the purchase and sale
of Receivables under this Agreement shall be without recourse to Originator.
Originator and Buyer intend the transactions hereunder to constitute true sales
of Receivables by Originator to Buyer, providing Buyer with the full risks and
benefits of ownership of the Receivables (such that the Receivables would not
be property of Originator’s estate in the event of Originator’s
bankruptcy).  Buyer shall not have any
obligation or liability with respect to any Receivable, nor shall Buyer have
any obligation or liability to any Obligor or


 


3

















 


other customer or
client of Originator (including any obligation to perform any of the
obligations of Originator under any Receivable).


 


2.6                                 Security Interest.  It is the intention of the
parties hereto that the transfer of Receivables hereunder constitute the sale
by Originator to Buyer of ownership interests in the Receivables, the
Collections and all proceeds of the foregoing (and not merely an extension of
credit or a pledge).  Nevertheless, the
Originator acknowledges and agrees that none of Buyer, the Agent, any Purchaser
or their representatives have made any representations or warranties concerning
the tax, accounting or legal characteristics of the Transaction Documents and
that the Originator has obtained and relied upon such tax, accounting and legal
advice from its own experts concerning the Transaction Documents as it deems
appropriate.  If, notwithstanding the
intention of the parties, the transaction contemplated hereby are characterized
as an extension of credit or a pledge, to secure all of the Seller’s
obligations under the Transaction Documents, Originator hereby grants to Buyer)
a security interest in all of the Buyer’s rights in the Receivables, the
Collections and all proceeds of the foregoing 
in each case whether now existing or hereafter arising or acquired.


 


SECTION 3.                            ADMINISTRATION
AND COLLECTION


 


3.1                                 Originator
to Act as Initial Servicer. 
Notwithstanding the sale of Receivables pursuant to this Agreement,
Originator shall continue to be responsible for the servicing, administration
and collection of the Receivables, all on the terms set out in (and subject to
any rights to terminate Originator as Initial Servicer pursuant to) the Second
Tier Agreement.


 


3.2                                 Deemed
Collections.  If on any day
the outstanding balance of a Receivable is reduced or cancelled as a result of
any defective or rejected goods or services, any cash discount or adjustment
(including as a result of the application of any special refund or other
discounts or any reconciliation), any setoff or credit (whether such claim or
credit arises out of the same, a related, or an unrelated transaction) or other
similar reason not arising from the financial inability of the Obligor to pay
undisputed indebtedness, Originator shall be deemed to have received on such
day a Collection on such Receivable in the amount of such reduction or
cancellation.  If on any day any
representation, warranty, covenant or other agreement of Originator related to
a Receivable is not true or is not satisfied, Originator shall be deemed to
have received on such day a Collection in the amount of the outstanding balance
of such Receivable.  All such Collections
deemed received by Originator under this Section 3.2 shall be remitted by
Originator to Buyer within one Business Day after such deemed receipt in
immediately available funds; provided, however, that if no such application is required
under the Second Tier Agreement, Buyer and Originator may agree to reduce the
outstanding principal amount of the Subordinated Note in lieu of all or part of
such transfer.  To the extent that Buyer
subsequently receives Collections with respect to any such Receivable, Buyer
shall pay Originator an amount equal to the amount so collected, such amount to
be payable in the same manner and priority as deferred purchase price.


 


3.3                                 Actions
Evidencing Purchases.  (a) On
or prior to the Initial Funding Date, Originator shall mark its master data
processing records evidencing Receivables with a legend, acceptable to Buyer,
evidencing that the Receivables have been sold in accordance with this
Agreement. In addition, Originator agrees that from time to time, at its
expense, it will promptly


 


4

















 


execute and
deliver all further instruments and documents, and take all further action,
that Buyer or its assignee may reasonably request in order to perfect, protect
or more fully evidence the purchases hereunder, or to enable Buyer or its
assigns to exercise or enforce any of their respective rights with respect to
the Receivables. Without limiting the generality of the foregoing, Originator
hereby authorizes Buyer and its designee to file, and (to the extent necessary
under applicable laws) will upon the request of Buyer or its designee execute
and file, such financing or continuation statements, or amendments thereto or
assignments thereof.


 


(b)                                 Originator
hereby authorizes Buyer or its assignee to (i) file one or more financing or continuation
statements, and amendments thereto and assignments thereof, relative to all or
any of the Receivables now existing or hereafter arising in the name of
Originator and (ii) to the extent required by the Second Tier Agreement, to
notify Obligors of the assignment of the Receivables.


 


3.4                                 Application
of Collections.  Any payment
by an Obligor in respect of any indebtedness owed by it to Originator shall,
except as otherwise specified by such Obligor (including by reference to a
particular invoice), or required by the related contracts or law, be applied, first, as
a Collection of any Receivable or Receivables then outstanding of such Obligor
in the order of the age of such Receivables, starting with the oldest of such
Receivables, and, second,
to any other indebtedness of such Obligor to Originator.


 


SECTION 4.                            REPRESENTATIONS
AND WARRANTIES


 


4.1                                 Originator
Representations and Warranties. 
Originator represents and warrants to Buyer on the date hereof and on
each Purchase Date that:


 


(a)                                  Company Existence and
Power.  Originator is a
limited liability company duly organized, validly existing and in good standing
under the laws of its state of organization and has all limited liability
company power and authority and all governmental licenses, authorizations,
consents and approvals required to carry on its business in each jurisdiction
in which its business is now conducted, except where failure to obtain such
license, authorization, consent or approval would not reasonably be expected to
have a Material Adverse Effect.


 


(b)                                 Company Authorization
and No Contravention.  The
execution, delivery and performance by Originator of each Transaction Document
to which it is a party (i) are within its limited liability company powers,
(ii) have been duly authorized by all necessary company action, (iii) do not
contravene or constitute a default under (A) any applicable law, rule or
regulation, (B) its constitution documents or (C) (subject to the Permitted
Exceptions) any agreement, order or other instrument to which it is a party or
its property is subject except where such contravention or default would not
reasonably be expected to have a Material Adverse Effect and (iv) will not
result in any Adverse Claim on any Receivable or Collection or give cause for
the acceleration of any indebtedness of Originator.


 


(c)                                  No Consent Required.  No approval, authorization or other action
by, or filings with, any Governmental Authority or (subject to the Permitted
Exceptions) other Person (other than the parties to the Second Tier Agreement
as may be required under the Transaction


 


5

















 


Documents) is
required in connection with the execution, delivery and performance by
Originator of any Transaction Document or any transaction contemplated thereby.


 


(d)                                 Binding Effect.  Each Transaction Document to which
Originator is a party constitutes the legal, valid and binding obligation of
Originator enforceable against Originator in accordance with its terms, except
as limited by bankruptcy, insolvency, or other similar laws of general
application relating to or affecting the enforcement of creditors’ rights
generally and subject to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).


 


(e)                                  Ownership Interest.  Immediately preceding its sale of
Receivables to Buyer, Originator was the owner of, and effectively sold, such
Receivables to Buyer, free and clear of any Adverse Claim.  The Buyer owns the Receivables, the
Collections and the proceeds thereof free of any Adverse Claim other than the
interests of the Purchasers (through Agent) therein that are created, and such
ownership interest as a first priority perfected interest for purposes of
Article 9 of the applicable Uniform Commercial Code, subject to the
Permitted Exceptions.


 


(f)                                    Accuracy of
Information.  All information
furnished by or on behalf of Originator to Buyer or any Person party to a
Transaction Document in connection with any Transaction Document, or any
transaction contemplated thereby, was true and accurate in all material
respects when so furnished (and is not incomplete by omitting any information
necessary to prevent such information from being materially misleading in the
light of the circumstances in which such information was furnished).


 


(g)                                 No Actions, Suits.  There are no actions, suits or other
proceedings (including matters relating to environmental liability) pending or
threatened against or affecting Originator or any of its properties, that would
reasonably be expected to have a Material Adverse Effect.  Originator is not in default of any
contractual obligation or in violation of any order, rule or regulation of any
Governmental Authority, which default or violation would reasonably be expected
to have a Material Adverse Effect.


 


(h)                                 No Material Adverse
Change.  Since March 31,
2004, no event has occurred that would reasonably be expected to have a
Material Adverse Effect.


 


(i)                                     Accuracy of Exhibits;
Accounts.  All information on
Exhibits D through F of the Second Tier Agreement (to the extent describing
Originator) is true and complete, subject to any changes permitted by, and
notified to Agent, in accordance with, Article V of the Second Tier
Agreement.  Originator has not granted,
or purported to grant, any interest in any Lock-Box, any Lock-Box Account, the
Collection Account or the Investment Account to any Person (other than the
Seller and the Agent for the benefit of the Agent and the Purchasers).


 


(j)                                     Sales by Originator.  Each sale by Originator to Buyer of an
interest in Receivables has been made for “reasonably equivalent value” (as such term is used in
Section 548 of the Bankruptcy Code) and not for or on account of “antecedent debt” (as such term is used in
Section 547 of the Bankruptcy Code) owed by Originator to Buyer.


 


(k)                                  Credit and
Collection Policy.  Each
Receivable has been originated in material compliance with the Credit and
Collection Policy.


 


6

















 


SECTION 5.                            GENERAL
COVENANTS


 


5.1                                 Covenants.  Originator hereby covenants and agrees to
comply with the following covenants and agreements, unless Buyer (with the
consent of Agent) shall otherwise consent:


 


(a)                                  Information Regarding
Receivables.  Originator will
maintain a system of accounting established and administered in accordance with
GAAP and will furnish to Buyer, promptly, such information relating to the
Receivables as Buyer or its assigns may reasonably request.  To the extent the Buyer is required to provide
financial statements or other notices with respect to Originator under the
Second Tier Agreement, Originator shall make the necessary information
available to Buyer for delivery to the Agent within the time required by the
Second Tier Agreement.


 


(b)                                 Notices.  Immediately upon becoming aware of any of
the following Originator will notify Buyer and provide a description of:


 


(i)                                     Potential Termination
Events.  The occurrence of
any Potential Termination Event;


 


(ii)                                  Representations and
Warranties.  The failure of
any representation or warranty herein to be true (when made) in any material
respect;


 


(iii)                               Litigation.  The institution of any litigation,
arbitration proceeding or governmental proceeding in which the amount involved
(not covered by insurance) is $5,000,000 or more or in which injunctive or
similar relief is sought that would reasonably be expected to have a Material
Adverse Effect;


 


(iv)                              Judgments.  The entry of any judgment or decree against
any SIRVA Entity if the aggregate amount (not covered by insurance) of all
judgments then outstanding against any SIRVA Entity exceeds $5,000,000;


 


(v)                                 Change in Business.  Any change in, or proposed change in, the
character of Originator’s business that could reasonably be expected to impair
the collectibility or quality of any Receivable; or


 


(vi)                              Relocation
Agreements.  The pending
expiration or termination of any Included Relocation Services Agreement, which
notice shall be given at least 10, and not more than 20, Business Days prior to
such expiration or termination.


 


(c)                                  Conduct of Business.
 Originator will perform, and will cause
each of its Subsidiaries to perform, all actions necessary to remain duly
organized, validly existing and in good standing in its jurisdiction of
organization and to maintain all requisite authority to conduct its business
except where failure to do so would not reasonably be expected to have a
Material Adverse Effect.


 


(d)                                 Compliance with Laws.  Originator will comply with all laws,
regulations, judgments and other directions or orders imposed by any
Governmental Authority to which


 


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Originator, any
Receivable or Collections may be subject except where failure to do so would
not reasonably be expected to have a Material Adverse Effect.


 


(e)                                  Inspection of Records.  Originator will furnish to Buyer and its
assigns such Records as Buyer or its assigns may reasonably request.  Originator will permit upon reasonable
notice, at any time during regular business hours, Buyer or its assignee (or
any representatives thereof) (i) to examine and make copies of all Records,
(ii) to visit the offices and properties of Originator for the purpose of
examining the Records and (iii) to discuss matters relating hereto with any of
Originator’s officers, directors, employees or independent public accountants
having knowledge of such matters.  Buyer
(or Agent as its assignee), at the request of Agent, shall (at the expense of
Originator) require that an independent public accounting firm conduct an audit
of the Records or make test verifications of the Receivables and Collections,
provided that so long as no Termination Event exists, Buyer (or Agent as its
assignee) shall not have more than one set of audit and test verifications done
in any calendar year.


 


(f)                                    Keeping Records.  (i) Originator will have and maintain (A)
administrative and operating procedures (including an ability to recreate
Records necessary to service outstanding Receivables and prepare reports
required by the Transaction Documents if originals are destroyed), (B) adequate
facilities, personnel and equipment and (C) all Records and other information
reasonably necessary or advisable for collecting the Receivables (including
Records adequate to permit the immediate identification of each Obligor, each
new Receivable and all Collections of, and adjustments to, each existing
Receivable and to effect the settlements contemplated by this Agreement).


 


(ii)                                  Originator
will, at all times from and after the date hereof, clearly and conspicuously
mark (x) its files containing the Relocation Services Agreements and the
Relocating Employee Contracts, and (y) its computer and master data processing
books and records, in each case with a legend describing Buyer’s interest
therein.


 


(g)                                 Perfection.  (i) Subject to the Permitted Exceptions, Originator
will, at its expense, promptly execute and deliver all instruments and
documents and take all action necessary or reasonably requested by Buyer or its
assignee (including, if applicable, execution and filing of financing or
continuation statements, amendments thereto or assignments thereof) to enable
Buyer to exercise and enforce all its rights hereunder and to vest and maintain
vested in the buyer a valid, first priority perfected ownership interest in the
Receivables, the Collections and proceeds thereof free and clear of any Adverse
Claim.  The Buyer or its assignee is
hereby authorized to file any continuation statements, amendments thereto and
assignments thereof.


 


(ii)                                  Originator
will only change its name, identity or corporate structure or relocate its
state of organization, chief executive office or the Records following thirty
(30) days advance notice to Buyer and the delivery to Buyer of all financing
statements, instruments and other documents (including direction letters and
opinions) reasonably requested by Buyer.


 


(iii)                               Originator will at all
times maintain its jurisdiction of organization and chief executive  offices within a jurisdiction in the USA
(other than in the states of Florida, Maryland and Tennessee) in which Article 9
of the UCC is in effect.  If


 


8

















 


Originator moves its jurisdiction of organization to a location that
imposes Taxes, fees or other charges to perfect Buyer’s or its assignees’
interests under this Agreement, Originator will pay all such amounts and any
other costs and expenses incurred in order to maintain the enforceability of
the Transaction Documents and the interests of Buyer and its assignees in the
Receivables and Collections.


 


(h)                                 Performance of Duties.  Originator will perform its duties or
obligations in accordance with the provisions of each of the Transaction
Documents.  Originator (at its expense)
will, (i) fully and timely perform in all material respects all agreements
required to be observed by it in connection with each Receivable, (ii) comply
in all material respects with the Credit and Collection Policy, and (iii)
refrain from any action that may impair the rights of Buyer or its assignees in
the Receivables or Collections.


 


(i)                                     Payments on Receivables,
Accounts.  Originator will at
all times (commencing by July 10, 2004) instruct all Origination Home
Closing Agents to deliver payments on the Receivables to the Collection
Account.  Originator will not make any
change in its payment instructions to any Obligor without prior notice to Buyer
and Agent.  If any such payments or
other Collections are received by Originator, it shall hold such payments in
trust for the benefit of Buyer and its assigns and promptly (but in any event
within three Business Days after receipt) remit such funds into the Collection
Account.  Originator will not permit the
funds that do not constitute proceeds of Receivables to be deposited into the
Collection Account.  If such funds are
nevertheless deposited into the Collection Account, Originator will promptly
identify such funds for segregation. Originator will not, and will not permit
any Servicer or other Person to, commingle Collections or other funds to which
Buyer is entitled with any other funds. 
Originator shall not close the Collection Account, without the prior
written consent of Agent.


 


(j)                                     Sales and Adverse
Claims Relating to Receivables. 
Except as otherwise provided herein Originator will not (by operation of
law or otherwise) dispose of or otherwise transfer, or create or suffer to
exist any Adverse Claim upon, any assets which may give rise to a Receivable or
any proceeds thereof.


 


(k)                                  Extension or
Amendment of Receivables. 
Except as otherwise permitted in Section 3.2(b) of the Second Tier
Agreement, Originator will not extend, amend, rescind or cancel any Receivable.


 


(l)                                     Change in Business or
Credit and Collection Policy. 
Originator will not make any material change in its business or the
Credit and Collection Policy without 30 days prior written notice to Buyer and
Agent, and if such proposed change would adversely affect the collectability of
the Receivables, or otherwise reasonably be expected to have a Material Adverse
Effect, the written consent of Agent.


 


5.2                                 Corporate
Separateness.  Each of
Originator and Buyer agrees to conduct its business in a manner materially
consistent with factual assumptions set forth in the opinion of Winston &
Strawn LLP, dated on or around the date hereof, with respect to certain
bankruptcy law matters, which opinion was delivered to the Purchasers pursuant
to the Second Tier Agreement.


 


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SECTION 6.                            TERMINATION
OF PURCHASES


 


6.1                                 Voluntary
Termination.  The purchase
and sale of Receivables pursuant to this Agreement may be terminated by either
party, upon thirty days’ (or, during the continuance of a Trigger Event, five
Business Days’) prior written notice to the other party and the Agent.


 


6.2                                 Automatic
Termination.  The purchase
and sale of Receivables pursuant to this Agreement shall automatically
terminate upon the occurrence of a Bankruptcy Event with respect to Originator.


 


SECTION 7.                            INDEMNIFICATION


 


7.1                                 Originator’s
Indemnity.  Without limiting
any other rights any such Person may have hereunder or under applicable law,
Originator hereby indemnifies and holds harmless, on an after-Tax basis, Buyer,
its assigns and their respective officers, directors, agents and employees
(each an “Indemnified
Party”) from and
against any and all damages, losses, claims, liabilities, penalties, Taxes,
costs and expenses (including attorneys’ fees and court costs) (all of the
foregoing collectively, the “Indemnified Losses”)
at any time imposed on or incurred by any Indemnified Party arising out of or
otherwise relating to any Transaction Document, the transactions contemplated
thereby or the acquisition of any portion of the Receivables or Collections, or
any action taken or omitted by any of the Indemnified Parties, whether arising
by reason of the acts to be performed by Originator hereunder or otherwise,
excluding only Indemnified Losses to the extent (a) such Indemnified
Losses result from gross negligence or willful misconduct of the Indemnified
Party seeking indemnification, (b) such Indemnified Losses result due to
Receivables being uncollectible on account of the insolvency, bankruptcy or
lack of creditworthiness of the related Obligor or (c) such Indemnified
Losses include Taxes on, or measured by, the overall net income of the
Indemnified Party (determined on the assumption that the transactions
contemplated hereby would constitute debt for tax purposes); provided,
however, that nothing contained in this sentence shall limit the
liability of Originator or limit the recourse of any Indemnified Party to
Originator for any amounts otherwise specifically provided to be paid by the
Originator hereunder.  Without limiting
the foregoing indemnification, but subject to the limitations set forth in
clauses (a), (b) or (c) of the previous sentence, Originator shall
indemnify each Indemnified Party for Indemnified Losses (including losses in
respect of uncollectible Receivables, regardless for these specific matters
whether reimbursement therefor would constitute recourse to Originator)
relating to or resulting from:


 


(i)                                     any
representation or warranty made by Originator (or any employee or agent of
Originator) under or in connection with this Agreement, any Periodic Report or
any other information or report delivered by Originator pursuant to the
Transaction Documents, which shall have been false or incorrect in any material
respect when made or deemed made;


 


(ii)                                  the
failure by Originator to comply with any applicable law, rule or regulation
related to any Receivable, or the nonconformity of any Receivable with any such
applicable law, rule or regulation;


 


10

















 


(iii)                               the failure of
Originator to vest and maintain vested in Buyer and its assigns, first priority
a perfected ownership in the Receivables and the Collections with respect
thereto, free and clear of any Adverse Claim;


 


(iv)                              any
commingling of funds to which Buyer or its assigns are entitled hereunder with
any other funds;


 


(v)                                 any
failure of any Origination Home Closing Agent to comply with the terms of the
Servicer’s instructions to send Origination Home Sale closing proceeds to the
Collection Account;


 


(vi)                              any
dispute, claim, offset or defense (other than discharge in bankruptcy of the
Obligor) of the Obligor to the payment of any Receivable, or any other claim
resulting from the sale or lease of goods or the rendering of services related
to such Receivable or the furnishing or failure to furnish any such goods or
services or other similar claim or defense not arising from the financial
inability of any Obligor to pay undisputed indebtedness;


 


(vii)                           any failure of Originator to
perform its duties or obligations in accordance with the provisions of this
Agreement, any other Transaction Document or any Relocation Services Agreement
to which it is a party (as Originator, Servicer or otherwise);


 


(viii)                        any tax or governmental fee or
charge (other than franchise taxes and taxes on or measured by the net income
of Buyer), all interest and penalties thereon or with respect thereto, and all
out-of-pocket costs and expenses, including the reasonable fees and expenses of
counsel in defending against the same, which may arise by reason of the
purchase or ownership of the Receivables; or


 


(ix)                                any
environmental liability claim, products liability claim or personal injury or
property damage suit or other similar or related claim or action of whatever
sort, arising out of or in connection with any Receivable or any other suit,
claim or action of whatever sort relating to any of the Transaction Documents
(including without limitation with respect to investigation, laboratory and
consultant’s fees).


 


SECTION 8.                            MISCELLANEOUS


 


8.1                                 Amendments,
Waivers, Etc.  No amendment
of this Agreement or waiver of any provision hereof or consent to any departure
by either party therefrom shall be effective without the written consent of the
party that is sought to be bound. Any such waiver or consent shall be effective
only in the specific instance given. No failure or delay on the part of either
party to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law. 
Originator agrees that the Purchasers may rely upon the terms of this
Agreement, and that the terms of this Agreement may not be amended, nor any
material waiver of those terms be granted, without the consent of Agent.


 


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8.2                                 Assignment
of Receivables Sale Agreement. 
The Originator hereby acknowledges that on the date hereof Buyer has
collaterally assigned for security purposes all of its right, title and
interest in, to and under this Agreement to Agent, for the benefit of the
Purchasers pursuant to the Receivables Sale Agreement and that Agent and the
Purchasers are third party beneficiaries hereof.  The Originator hereby further acknowledges that all provisions of
this Agreement shall inure to the benefit of Agent and the Purchasers,
including the enforcement of any provision hereof to the extent set forth in
the Receivables Sale Agreement, but that none of Agent or any Purchaser shall
have any obligations or duties under this Agreement (or any promissory note
executed hereunder).  The Originator
hereby further acknowledges that the execution and performance of this
Agreement are conditions precedent for Agent and the Purchasers to enter into
the Receivables Sale Agreement and that the agreement of Agent and Purchasers
to enter into the Receivables Sale Agreements will directly or indirectly
benefit Originator and constitutes good and valuable consideration for the
rights and remedies of Agent and each Purchaser with respect hereto.


 


8.3                                 Binding
Effect; Assignment.  This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns and shall also, to the extent
provided herein, inure to the benefit of the parties to the Second Tier
Agreement. Originator acknowledges that Buyer’s rights under this Agreement are
being assigned to Agent under the Second Tier Agreement and that Agent shall
exercise those rights directly, to the extent permitted by the Second Tier
Agreement.


 


8.4                                 Survival.  The rights and remedies with respect to any
breach of any representation and warranty made by Originator or Buyer pursuant
to Section 4
and the indemnification provisions of Section 7 shall survive any
termination of this Agreement.


 


8.5                                 Costs,
Expenses and Taxes.  In
addition to the obligations of Originator under Section 7, each party hereto
agrees to pay on demand all costs and expenses incurred by the other party and
its assigns (other than Excluded Losses) in connection with the enforcement of,
or any actual or claimed breach of, this Agreement, including the reasonable
fees and expenses of counsel to any of such Persons incurred in connection with
any of the foregoing or in advising such Persons as to their respective rights
and remedies under this Agreement in connection with any of the foregoing.  Originator also agrees to pay on demand all
stamp and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing and recording of this
Agreement.


 


8.6                                 Headings;
Counterparts. 
Article and Section Headings in this Agreement are for
reference only and shall not affect the construction of this Agreement.  This Agreement may be executed by different
parties on any number of counterparts, each of which shall constitute an original
and all of which, taken together, shall constitute one and the same agreement.


 


8.7                                 Cumulative
Rights and Severability.  All
rights and remedies of Buyer hereunder shall be cumulative and non-exclusive of
any rights or remedies Buyer has under law or otherwise.  Any provision hereof that is prohibited or
unenforceable in any jurisdiction shall, in such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and without affecting such provision in any other
jurisdiction.


 


12

















 


8.8                                 Governing
Law; Submission to Jurisdiction. 
This Agreement shall be governed by, and construed in accordance with,
the internal laws (and not the law of conflicts) of the State of Illinois.  Originator and Buyer hereby submit to the
nonexclusive jurisdiction of the United States District Court for the Northern
District of Illinois and of any Illinois state court sitting in Chicago,
Illinois for purposes of all legal proceedings arising out of, or relating to,
the Transaction Documents or the transactions contemplated thereby.  Originator and Buyer hereby irrevocably
waive, to the fullest extent permitted by law, any objection they may now or
hereafter have to the venue of any such proceeding and any claim that any such
proceeding has been brought in an inconvenient forum.


 


8.9                                 Waiver of
Trial by Jury.  TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF ORIGINATOR AND BUYER HERETO IRREVOCABLY
WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF, OR IN CONNECTION WITH, ANY TRANSACTION DOCUMENT OR ANY MATTER
ARISING THEREUNDER.


 


8.10                           Entire
Agreement.  The Transaction
Documents constitute the entire understanding of the parties thereto concerning
the subject matter thereof.  Any
previous or contemporaneous agreements, whether written or oral, concerning
such matters are superseded thereby.


 


8.11                           No
Proceedings.  Originator
agrees, for the benefit of the parties to the Second Tier Agreement, that it
will not institute against Buyer, or join any other Person in instituting
against Buyer, any proceeding of a type referred to in the definition of
Bankruptcy Event until one year and one day after no investment, loan or commitment
is outstanding under the Second Tier Agreement. In addition, all amounts
payable by Buyer to Originator pursuant to this Agreement shall be payable
solely from funds available for that purpose (after Buyer has satisfied all
obligations then due and owing under the Second Tier Agreement).


 


8.12                           Confidentiality.  The Originator agrees to hold the
Transaction Documents or any other confidential or proprietary information of
Agent or Purchasers received in connection therewith in confidence and agree
not to provide any Person with copies of any Transaction Document or such other
confidential or proprietary information other than to (i) any officers,
directors, members, managers, employees or outside accountants, auditors or
attorneys thereof, (ii) any prospective or actual assignee or participant which
(in each case) has signed a confidentiality agreement satisfactory to Agent,
(iii) Governmental Authorities with appropriate jurisdiction, and (iv) any
Rating Agency.  Notwithstanding the
above stated obligations, the parties hereto will not be liable for disclosure
or use of such information which such Person can establish by tangible
evidence: (i) was required by law, including pursuant to a subpoena or other
legal process, (ii) was in such Person’s possession or known to such Person
prior to receipt or (iii) is or becomes known to the public through disclosure
in a printed publication (without breach of any of our obligations hereunder).


 


8.13                           USA PATRIOT
Act Notice.  Buyer hereby
notifies Originator that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
each assignee of Buyer’s rights under this Agreement, including without
limitation, each Purchaser, that is subject to the Act (as hereinafter defined)
and the Agent (for


 


13

















 


itself and not on
behalf of any Purchaser), is required to obtain, verify and record information
that identifies Originator, which information includes the name and address of
Originator and other information that will allow such assignee, Purchaser or
the Agent, as applicable, to identify Originator in accordance with the Act.


 


[SIGNATURE PAGES FOLLOW]


 


14

















 


IN WITNESS WHEREOF, the
parties have caused this Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above written.


 


	
   

  	
  SIRVA
  RELOCATION LLC,

  
	
   

  	
  as
  Originator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SIRVA
  RELOCATION CREDIT, LLC,

  
	
   

  	
  as
  Buyer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  
					



 


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